remaking the courts administration is · 2019. 4. 1. · responsible for helping trump select his...

4/1/2019 How the Trump Administration Is Remaking the Courts - The New York Times

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FEATURE

Thanks to ruthless discipline — and a plan long in the making — the G.O.P is carryingout a sweeping transformation of the federal judiciary.

By Jason Zengerle

Aug. 22, 2018

onald F. McGahn, the White House counsel, stood in the gilded ballroom of Washington’sMayflower Hotel last November to address the annual meeting of the Federalist Society.He seemed humbled, even a bit awed to be delivering the Barbara K. Olson Memoriallecture, named after the conservative lawyer who died in the Sept. 11 attacks. Noting

some of the legal giants who gave the Olson lecture in years past, McGahn reflected, “You hearnames like Scalia, Roberts and Gorsuch and then me; one of those names really is different thanthe rest.” Unlike previous speakers — to say nothing of many of those to whom he was nowspeaking — McGahn, himself a member of the Federalist Society, hadn’t attended an Ivy Leaguelaw school; he went to Widener University, a “second tier” law school in Pennsylvania. He hadnever held a tenured professorship or boasted an appellate practice, much less a judgeship, thatrequired him to think deeply about weighty constitutional issues; he specialized in thecomparably mundane and technical field of campaign finance and election law. “But here we are,”McGahn said to the audience, almost apologetically. In 2015, Donald Trump hired McGahn to bethe lawyer for his long-shot presidential campaign. Then, after Trump shockingly won theelection, he tapped McGahn, who had proved his talent and loyalty during the campaign, to beWhite House counsel. Trump, in other words, had made McGahn’s wildest dreams come true.Now, McGahn told the Federalist Society, Trump was going to make their wildest dreams cometrue, too.

The Federalist Society for Law and Public Policy Studies, as it is officially known, has played acrucial role in putting conservative jurists on the bench. As White House counsel, McGahn isresponsible for helping Trump select his judicial nominees. And, as he explained in his speechthat November afternoon, he had drawn up two lists of potential judicial appointments. The firstlist consisted of “mainstream folks, not a big paper trail, the kind of folks that will get through the

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Senate and will make us feel good that we put some pragmatic folks on the bench.” The secondlist was made up of “some folks that are kind of too hot for prime time, the kind that would bereally hot in the Senate, probably people who have written a lot, we really get a sense of theirviews — the kind of people that make some people nervous.” The first list, McGahn said, Trumpdecided to “throw in the trash.” The second list Trump resolved “to put before the U.S. Senate” fora confirmation vote. The president, McGahn assured his audience, was “very committed to whatwe are committed to here, which is nominating and appointing judges that are committedoriginalists and textualists.”

As White House counsel, McGahn has exercised an unprecedented degree of control over judicialappointments. In previous White Houses, both Republican and Democrat, judicial nominationswere typically crowdsourced among officials from different parts of the administration. UnderGeorge W. Bush, for instance, there was a judicial-selection committee made up of people fromthe offices of the White House counsel, political affairs and legislative affairs, as well as officialsfrom the Justice Department. This tended to produce a leveling effect. “You killed nominees bycommittee,” says one Republican involved in judicial confirmations. Under Trump, the job belongsexclusively to the White House Counsel’s Office, with McGahn and his deputy, Robert Luther, andabout 10 associate counsels identifying and then scrutinizing candidates. This process is unique inWhite House history. Instead of engaging in the typical legislative horse-trading for nominatingjudges — promising a senator, for instance, that the president will support the nomination of thelawyer who served as the senator’s campaign-finance chairman in exchange for a yes vote on theadministration’s agriculture bill — the Trump White House has given the counsel’s office near-absolute authority. In a White House known for chaos and dysfunction, the counsel’s office, underMcGahn, is generally viewed as an island of competence. “The White House is like a Dante’sʻInferno’-strange comedy,” says one leading conservative lawyer who requested anonymity forfear of reprisal, “but the people in the counsel’s office are like the A-Team.” That many of thelawyers in the counsel’s office are also Federalist Society members — as elite Republican lawyerstoday often are — has given McGahn a handy rebuttal to the complaint that Trump hasoutsourced his judicial-selection process to the group. “Frankly,” McGahn has said, “it seems likeit’s been insourced.”

While Trump has lagged behind other presidents in political appointments, the streamlining ofthe judicial-selection process has helped him deliver a historic number of judges to the federalbench. In 2017, the Senate confirmed 12 of Trump’s appeals court picks — the most for anypresident in his first year in office. This year, the Senate has already confirmed 12 appellatejudges and, according to a Republican Judiciary Committee aide, hopes to confirm at least fourmore. The White House refers to every new batch of judicial appointees Trump selects as“waves” — in early June, it announced the “Fifteenth Wave of Judicial Nominees”— as if they’resoldiers landing on the beaches of Normandy.



Trump’s appointees have tended to be unusually well credentialed and conservative. Republicanslike to emphasize their academic and professional bona fides — the summa cum laudes, the PhiBeta Kappas, the Supreme Court clerks — and jokingly celebrate their “deep bench” ofcandidates. Democrats, for their part, prefer to focus on the appointees’ ideology. “If someone hadsaid or written something half as controversial as these Trump nominees, they never would havebeen picked by President George W. Bush,” says Kristine Lucius, a former Democratic SenateJudiciary Committee aide and now the executive vice president for policy at the LeadershipConference on Civil and Human Rights. “What once would have been disqualifying” — anominee’s stated views on contraception or gay rights or consumer protection — “is nowmotivating this president.” Or perhaps, the nominees’ views are what’s motivating manyconservatives to go along with Trump’s presidency — which is what’s motivating Trump.

When it comes to Trump’s judicial appointments, the public has been understandably focused onthe Supreme Court, with first Neil Gorsuch and now Brett Kavanaugh receiving most of theattention. When one of Trump’s lower-court nominees has managed to penetrate publicconsciousness, it has usually been an outlier, like Brett Talley, whom Trump picked last year foran Alabama Federal District Court judgeship. Talley, who had never tried a case and whom theAmerican Bar Association rated unanimously “not qualified,” ultimately withdrew his nominationafter it was discovered that he was a member of a ghost-hunting group and had apparentlydefended the honor of the early Ku Klux Klan on an Alabama Crimson Tide football fan messageboard.

More representative of Trump’s judicial appointees are judges like James C. Ho. Born in Taiwan,Ho moved to the United States as a toddler. He graduated from Stanford and the University ofChicago law school before going on to clerk for Clarence Thomas at the Supreme Court. Afterworking in George W. Bush’s Justice Department, he succeeded Ted Cruz as Texas solicitorgeneral. Ho is as pure a product as exists of the conservative legal movement created by theFederalist Society. Last October, Trump nominated Ho to the United States Court of Appeals forthe Fifth Circuit. In December, he was confirmed by the Senate. And in April, Ho issued his firstopinion — a blistering dissent in a campaign-finance case after a Fifth Circuit appellate panelruled, 12 to 2, that the City of Austin, Tex., could prohibit individuals from donating more than$350 per election to municipal candidates. Ho used his dissent not only to voice his disapproval ofcampaign-finance laws but also to criticize those that regulated gun purchases and protectedabortion; he even threw in a swipe, in a citation, at the Supreme Court’s Obamacare ruling.Lamenting a government that has grown so large that it “would be unrecognizable to ourfounders,” Ho wrote: “If there is too much money in politics, it’s because there’s too muchgovernment. The size and scope of government makes such spending essential.”

To be sure, Ho’s was a dissenting opinion, but what so cheered members of the conservative legalmovement is that it was likely the first of many, because Ho is only 45. And because there will bemore and more judges like Ho on the federal bench, it’s only a matter of time before such opinionswill no longer be dissents. Indeed, after just 18 months, Trump has “flipped” two circuits — the



Sixth and Seventh — from what Trump’s supporters in the conservative legal movement consider“liberal” to more properly conservative. Two more — the Eighth and the 11th — are on the vergeof tipping. Even circuits that are decidedly liberal are undergoing significant changes. “It’ll bereally important for the Second and the Ninth Circuits to have between two and four really good,high-octane intellectual conservative jurists,” explains a person close to the judicial-nominationsprocess, “because dissents provide a signaling function to the U.S. Supreme Court, and those arevery important circuits.”

In short, a radically new federal judiciary could be with us long after Trump is gone. Brian Fallon,a veteran Democratic operative who leads Demand Justice, a group formed to help Democratswith research and communications in the judicial wars, says, “We can win back the House thisNovember, we can defeat Trump in 2020 and we’ll still be dealing with the lingering effects ofTrumpism for the next 30 or 40 years because of the young Trump-appointed judges.”

And if Trump is re-elected? Newt Gingrich, who during the 2016 campaign began emphasizingthe importance of judges to Trump, posits: “He could, by the end of his time in office, be the mostimportant president since Franklin Delano Roosevelt in shaping the judiciary.”

Like most members of the Republican establishment, Leonard Leo, the executive vice presidentof the Federalist Society, was initially skeptical — if not contemptuous — of Trump’s politicalaspirations. A few months before Trump announced his presidential bid in 2015, Sam Nunberg,then a political adviser to Trump’s campaign, tried to arrange a sit-down between his boss andLeo. “I told Leonard, ʻMr. Trump is a conservative now on these issues, and you’re not going tobelieve how good he is going to be for you,’ ” Nunberg recalls. “He sat there like regular D.C. andlistened, and who the hell knows what he said after I left. He probably said, ʻGee, I feel bad forthat kid.’ ” The meeting between Trump and Leo never happened.

But by the time the Republican presidential primaries began in early 2016, Leo’s thinking aboutTrump had evolved. Trump, by then, had established himself as a plausible candidate, maybeeven a front-runner. That March, Leo was part of a small group of Washington Republicans,including Gingrich and the Heritage Foundation president at the time, Jim DeMint, who met withTrump for a lunch at the Jones Day law firm, where McGahn was a partner. When the meal wasover, Leo, McGahn and Trump broke off from the larger group for a private meeting. Reachinginto his suit-jacket pocket, Leo presented Trump with a list of potential Supreme Court nomineesthat McGahn had asked him to bring — a combination of federal judges and State Supreme Courtjustices who Leo believed would be suitable successors to Justice Antonin Scalia, who died theprevious month.

“I was really hoping for 12,” Trump told him.

“Well, you’ve got eight,” Leo replied.

“Can’t we find more?” Trump asked.



“We can try,” Leo pledged.

Trump, Leo recalls, had a question about the State Supreme Court justices on Leo’s list: Do theymake “the final decision”? Leo explained that sometimes they do and sometimes they don’t,depending on whether the issue before them involves the United States Constitution. He askedwhy Trump wanted to know. “Because when you have to make a final decision, and it is the realfinal decision, you own it,” Trump explained. “And like a businessman, when you own somethingthat you do, you take it very seriously, and it has consequences.”

“It was an interesting insight that I hadn’t really thought of,” Leo told me. We were sitting atMorton’s, the venerable Washington steakhouse, where Leo, an owlish man in his 50s who wearsa pocket watch, keeps a wine locker. “It was, I think, the best conversation I have ever had in myprofessional life with a Republican presidential candidate on the issue of judges,” he marveled.

It’s hard to take that claim at face value. In 2016 alone, Leo discussed judges with Jeb Bush —who, as governor of Florida, appointed more than 100 of them — and Ted Cruz, who clerked forChief Justice William H. Rehnquist, argued nine cases in front of the Supreme Court and himselfis a member of the Federalist Society. A mere two weeks after Trump shared his insights aboutthe judiciary with Leo, he told an interviewer that he planned to appoint Supreme Court justiceswho “would look very seriously at her” — Hillary Clinton’s — “email disaster.” A few months afterthat, Trump promised a group of congressional Republicans that he would protect “Article XII” ofthe Constitution — an article that doesn’t exist.

Appellate Judgeships Confirmed During First Congressional Term. Ronald Reagan, 19; George Bush, 18; BillClinton, 18; George W. Bush, 16; Barack Obama, 15; Donald Trump, 24. Illustration by Tracy Ma



Trump might not have known much about the law, but he needed, as Gingrich told me, to createthe impression that he “would be reliable in terms of conservative judges, because that wouldcalm down and consolidate a very large bloc of his coalition.” That is, what mattered to theFederalist Society — and the Heritage Foundation — was that Trump take their advice on judicialnominees. In an interview with Breitbart in June 2016, Trump pledged, “We’re going to have greatjudges, conservative, all picked by Federalist Society.”

Leo also figured out what mattered to Trump. “Leonard is smart,” says David Lat, the foundingeditor of the influential legal website Above the Law and a former Federalist Society member. “Heknows the way to Trump’s heart is through his ego.” And perhaps his pocketbook. In May,McClatchy reported that a mysterious $1 million donation to Trump’s inaugural committee inDecember 2016 — made by a company called BH Group L.L.C. that was apparently formed tohide the source of the donation — was tied to Leo. (When I asked him about the McClatchyreport, Leo declined to comment.) “Leonard had an instinct,” Gingrich says, “that this could bethe great opportunity to redevelop conservatism on the courts.”

The Federalist Society was founded in 1982 by a small cadre of conservative law students at Yaleand the University of Chicago. Its first faculty advisers were Robert H. Bork at Yale and AntoninScalia at Chicago. The group quickly spread to other campuses, and within a few years it hadreceived an infusion of cash from conservative donors, including the Koch brothers. Ever sincethen, if you were a law student with conservative leanings, it was more than likely you became aFederalist Society member and were absorbed into a sprawling network of law school chapters,practice groups, publications and seminars that could nurture you for your entire career. Today,the Federalist Society boasts more than 70,000 members.

For most of the organization’s first three decades, its dominant philosophical emphasis was onjudicial restraint: the idea that judges shouldn’t overrule majority-passed, democratically enactedlaws — that they shouldn’t, as Amanda Hollis-Brusky, a Pomona College professor and the authorof the 2015 book “Ideas With Consequences: The Federalist Society and the ConservativeCounterrevolution,” puts it, “move the law too far, too fast.” This philosophy emerged largely as areaction to liberal rulings by the Warren and Burger courts — as well as those of lower-courtjudges — who, conservatives complained, tried to “legislate from the bench” on civil rights andcivil liberties. But within the Federalist Society and the larger conservative legal movement,there was an emerging faction that favored a more aggressive approach. These libertarian legaltheorists, led by the Georgetown law professor Randy Barnett, subscribed to the judicialphilosophies of originalism and textualism, which hold that judges should interpret theConstitution according to the meaning of its plain text, instead of its intent or purpose, and, moreimportant, should not hesitate to overturn any law that deviates from that text.

Originalists and textualists gave intellectual and theoretical ballast to this approach in theacademy. But they didn’t achieve critical mass in the larger conservative legal movement until2012, when the Supreme Court upheld the Affordable Care Act, with Chief Justice John G. Roberts



Jr. writing the majority opinion. “Conservatives were so disappointed they had to stop and think,How did this happen?” says Barnett, who helped mount the challenge to the constitutionality ofObamacare by invoking the commerce clause. “And how did it happen at the hands of a chiefjustice who was a Bush appointee and who had been signed off on by the Federalist Society?” Theconservative legal movement’s long-held devotion to judicial restraint began to founder. “Now thesituation has reversed itself,” Barnett told me. “The originalism side, and invalidating laws ifthey’re unconstitutional, has the upper hand.”

Critics of the Federalist Society contend that the group actually favors judicial activism: Judgeswho will take a stance on social issues, particularly on abortion. Many of the group’s membersquestion the legal basis for Roe v. Wade and whether a right to privacy exists in the Constitution,as Roe held it does. Leo was hailed by the conservative legal activist and writer Ed Whelan inNational Review in 2016 for being “more dedicated to the enterprise of building a Supreme Courtthat will overturn Roe v. Wade” than anyone else in the United States. Yet Leo accuses Democratsof “scare tactics” when they charge that Trump seeks to appoint judges who will outlaw abortion.Similarly, Trump, who at one point during the 2016 campaign pledged that Roe would beoverturned because he would put “pro-life justices on the court,” maintains that he did not bringup the topic of abortion in his interviews with Brett Kavanaugh.

The Federalist Society — and the Trump administration — are more forthright about the ways inwhich they hope originalism and textualism may apply to other arenas, particularly governmentregulation. “The greatest threat to the rule of law in our modern society is the ever-expandingregulatory state,” McGahn declared in his November speech to the Federalist Society, “and themost effective bulwark against that threat is a strong judiciary.” He added, “Regulatory reformand judicial selection are so deeply connected.” This idea is now at the heart of the FederalistSociety, whose members believe that federal agencies have become an unaccountable “fourthbranch” of government — and that their bureaucrats, oftentimes experts in their fields, should nolonger be shown any deference by the courts in how they apply laws enacted by Congress, butshould instead be restrained from doing anything beyond what the law, as Congress wrote it,stipulates. The originalists and textualists now favored by the Federalist Society and the Trumpadministration are decidedly disinclined to defer to executive-branch agencies, whether it’s theEnvironmental Protection Agency or the Food and Drug Administration or the OccupationalSafety and Health Administration, when it comes to interpreting arguably (and often necessarily)ambiguous statutes about the environment or public health or workplace safety. Unless Congressexplicitly mandates it, originalists and textualists believe, agencies can’t do it.

Gorsuch is said to have risen to the top of Trump’s Supreme Court list in large part because of a2016 concurring opinion he wrote as a judge on the United States Court of Appeals for the 10thCircuit, in which he forcefully attacked what’s known as “Chevron deference” — a term thatstems from a 1984 Supreme Court case, Chevron U.S.A. Inc. v. Natural Resources Defense CouncilInc., that instructed courts to grant policymaking flexibility to government agencies. Similarly,Don Willett, whom Trump appointed to the United States Court of Appeals for the Fifth Circuit



and who is on the president’s Supreme Court list, became a Federalist Society favorite largelybecause of a 2015 concurring opinion he wrote as a justice on the Texas Supreme Court. In Patel v.Texas Department of Licensing and Regulation, Willett struck down a state licensing requirementthat mandated 750 hours of training for eyebrow threaders, denouncing what he described as a“nonsensical government encroachment” on “occupational freedom” and economic liberty. Andwhen the White House rolled out Kavanaugh’s nomination to the Supreme Court in early July, itcirculated a memo to business groups that, according to Politico, praised the 75 times Kavanaugh,as a Court of Appeals judge, overruled federal regulators on cases involving issues like clean air,consumer protection and net neutrality in order to protect “American businesses from illegal job-killing regulation.” “The Federalist Society has embraced judicial activism,” Hollis-Brusky says.“They’re just calling it a different name.”

The ascendant wing of the Federalist Society has, according to critics, effectively managed tochange how Washington operates, by shifting power away from the executive and legislativebranches and toward the courts. It also represents something of a long-term strategy by theRepublican Party. “By appointing judges who’ll narrowly interpret congressional regulations andstatutes,” Hollis-Brusky says, “you’re gambling that you won’t be in power politically but thatyour judges will be on the bench and take a more active role in shaping laws over the next 30years.”

The appellate courts are especially important in this effort. Although the Supreme Court is thehighest court in the land, its caseload, which was not huge to begin with, has become evensmaller in recent years — declining from about 150 cases a term in 1980 to just 79 in the term thatended in June. The appeals courts, by contrast, collectively hear and decide thousands of caseseach year. “The Courts of Appeals are the regional Supreme Courts of the nation,” says SheldonGoldman, a University of Massachusetts at Amherst professor and a scholar of the Americanjudiciary, “and are of greater importance, in many respects, than the Supreme Court.” Nan Aron,the president of the liberal judicial group Alliance for Justice, says liberals don’t always recognizethe centrality of the appeals courts. “They’re making the law of the land in critically importantareas,” she says. “It’s something that’s not lost on the Republicans. That’s why they have theireyes on the prize.”

And never have they been as focused as they have been under Trump, who, according to RandyBarnett, “has made as good a selection of judges as any Republican president in my lifetime.”Even Leo, who has enjoyed unrivaled influence for more than two decades, seems impressed byhis — and the conservative legal movement’s — good fortunes in the Trump era. “Thisadministration,” he said that afternoon at Morton’s, “is trying to hit as many triples and homeruns as possible.”

When Trump Took office, he inherited not just an open Supreme Court seat but 107 additionaljudicial vacancies. Ronald Reagan, by contrast, had 35 unfilled judgeships; Obama had 54.“There’s a million qualified conservative lawyers out there,” says J.Scott Jennings, a Republican



strategist close to Senator Mitch McConnell, the majority leader. “The hard part was securing thevacancies and actually having a place to put them all. That was the spade work done by MitchMcConnell in the Obama years.”

From the moment Obama entered the White House, McConnell led Senate Republicans in adisciplined, sustained, at times underhanded campaign to deny the Democratic president theopportunity to appoint federal judges. McConnell’s first move came six weeks after Obama’sinauguration, in the form of a letter, signed by all 41 Republican senators, which warned the newpresident that if he did not consult with — and, more crucial, receive the approval of — home-state senators for his judicial nominees, then the Republicans would filibuster, insisting on 60votes to end debate. “They were very clear from the beginning that they were going to make thisas difficult and as partisan as possible,” says Christopher Kang, who worked on judicialnominations in the Obama White House Counsel’s Office.

Republican approval would be conveyed by one of the Senate’s many cherished proceduralinstruments known as a “blue slip.” The blue slip is literally a slip of paper that a senator returnsto the Judiciary Committee signaling that a given nominee in his or her state should receive ahearing. First introduced in 1917, the blue slip has been accorded varying weights by differentJudiciary Committee chairmen, but when Obama took office, the committee’s chairman wasSenator Patrick Leahy, a Vermont Democrat. Leahy, a strong institutionalist and protector of theSenate’s prerogatives, viewed the blue slip as something akin to a Holy Writ. If a home-statesenator, a Republican or a Democrat, did not want a judicial nominee to have a hearing, Leahywould not schedule one — essentially putting a hold on the nomination. In doing so, Leahy toldme, he was giving “real meaning to ʻadvise and consent’ ” and ensuring that the Senate kept “itsinstitutional independence and didn’t become a rubber stamp.”

Even without Leahy’s strict blue-slip policy, Obama would probably still have sought Republicanapproval for his judges. He was less interested in making the judiciary more liberal than inmaking it more diverse. It was important, Obama once told The New Yorker, for minorities “to seefolks in robes that look like them.” Surely, there were African-American, Latino, Asian, gay andfemale judges with moderate records and temperaments whom Republican senators couldsupport. “We were in the business of picking judges,” says Michael Zubrensky, a formerDepartment of Justice official who worked on judicial nominations in the Obama administration,“not picking fights.” The fundamental battles Obama wanted to wage with Republicans involvedlegislation, not a long game with the courts.

When Republican senators dragged out their consultations with the Obama administration onjudicial nominees, the Obama White House did not press them; when a blue slip was finallyreturned and the Judiciary Committee held a hearing and voted a nominee out of committee,Senate Democrats would often take their time before scheduling a floor vote, which Republicanswould usually insist couldn’t be held until after the maximum 30 hours of debate. “Judges at that



time were sort of an afterthought,” recalls Brian Fallon, who was then an aide to Senator ChuckSchumer of New York. “It was viewed as something you got around to scheduling when you werein between big pieces of legislation and you needed some filler on the floor.”

The combination of Republican intransigence — “You had all of these nominees piling up on thecalendar,” Kang says, “because Republicans felt any day without an Obama judge in place was abetter day for them” — and Democratic dawdling meant that even though Democrats enjoyed aSenate majority, Obama, several months into his second term, had more than 60 unfilled judicialvacancies that lacked even a nominee. “In retrospect, I think we all didn’t react with enoughalarm when it was happening,” Fallon says. “We indulged it for far too long in the Obama years,and now our chickens are coming home to roost.”

The issue came to a head in the fall of 2013 over three vacancies in particular — all of them on theUnited States Court of Appeals for the District of Columbia Circuit. Senate Republicans had beenunable to prevent the nominees from receiving a hearing, because there were no home-statesenators to withhold blue slips. But when the Senate’s majority leader at the time, Harry Reid,brought each of the three nominees to the floor, Republican senators, who by then numbered 45,refused to give them a vote. The Republicans didn’t object to the nominees themselves; all threewere considered moderate and eminently qualified. Rather, the Republicans argued that theDistrict of Columbia Circuit’s caseload was so meager that the judgeships should be eliminated.Reid decided to invoke what was known as the “nuclear option,” doing away with filibusters formost nominations by presidents, including those to the lower courts.

With the filibuster for lower-court judicial nominations eliminated, Obama was able to score morethan 100 judicial confirmations in just over a year. Then and now, Republicans denounced Reid’striggering of the nuclear option. “You’ll regret this,” Mitch McConnell warned in 2013, “and youmay regret this a lot sooner than you think.” But with Leahy leading the Judiciary Committee,Republican senators, even without the filibuster, still maintained some leverage — and wheneverpossible, they used their blue slips to bottle up Obama’s judicial nominations. Saxby Chamblissand Johnny Isakson, both Georgia Republicans, held up Jill Pryor’s nomination to the UnitedStates Court of Appeals for the 11th Circuit for two years, finally returning their blue slips onlyafter Obama agreed to nominate one of their picks to another 11th Circuit vacancy and three oftheir picks to district court judgeships. Democrats might have played hardball with the nuclearoption, but they still shrank from a fight, either because they agreed with Leahy that the blue slipwas an important procedural safeguard or because they didn’t have the stomach to pressure himto change his stance.

Republicans weren’t as squeamish. After taking back the Senate in the 2014 midterm elections,McConnell, now the majority leader, began a near blockade of Obama’s judicial appointments. InReagan’s final two years in office, 66 of his district court and 15 of his appeals court nominees



were confirmed. Clinton managed 57 and 13 in his last two years. George W. Bush had 58 and 10.In Obama’s final two years, 18 of his district nominees and just one of his appellate courtnominees were confirmed — the lowest number since Harry Truman was president.

One of the earliest, and ultimately most prolonged, battles in McConnell’s fight for Republicancontrol of the judiciary began when a routine vacancy opened up on the United States Court ofAppeals for the Seventh Circuit in Wisconsin in 2010. Wisconsin had long been considered a modelof bipartisanship in filling vacancies in the federal judiciary. In 1979, the state’s senators, WilliamProxmire and Gaylord Nelson, established a commission to depoliticize the judicial-selectionprocess. Known as Wisconsin’s Federal Nominating Commission, it was composed of 11 legalexperts — some appointed by the senators, others by the state bar — and led by the dean of thelaw school at either Marquette or the University of Wisconsin. It solicited applications, vettedcandidates and ultimately came up with a list of four to six individuals that the senators wouldreview and forward to the White House for consideration.

Although Proxmire and Nelson were both Democrats and a Democrat was president when thecommission was created, the process also worked in times of divided government. In 2003, whenSenate Democrats and George W. Bush were battling over his judicial nominees, Wisconsin’s twoDemocratic senators, Herb Kohl and Russell Feingold, both supported Diane Sykes, Bush’s choicefor a Seventh Circuit seat. “There are a number of topics on which we do not see eye to eye,”Feingold said in introducing Sykes at her Judiciary Committee hearing, but her “nomination isthe result of a collaborative bipartisan process.” (Today, Sykes is on Trump’s list of Supreme Courtcandidates.)

To fill the Seventh Circuit vacancy in 2010, the commission recommended six candidates toreplace Terence Evans, who was taking senior status. Kohl and Feingold forwarded the names toObama for consideration. In July, Obama nominated Victoria Nourse, a University of Wisconsinlaw professor and former Senate Judiciary Committee staff member for Joe Biden. She was afairly typical Obama nominee, in that she was a woman (42 percent of Obama’s judges werewomen, the highest percentage of any president) and a moderate (besides working for Biden,Nourse worked on the Judiciary Committee with Orrin Hatch, a Utah Republican). She was alsotypical in that the Obama administration and Senate Democrats didn’t seem to afford hernomination much urgency. At the end of 2010, Nourse still had not been scheduled for aconfirmation hearing.

This would prove to be a problem when, in November of that year, Feingold lost his re-electioncampaign to Ron Johnson, a Republican businessman and Tea Party candidate. AlthoughFeingold had returned his blue slip for Nourse, as well as for a nominee to a district court,Johnson, upon joining the Senate, essentially took them back. In Wisconsin, legal experts chalkedup Johnson’s move to inexperience. “Everybody just assumed that once he got up to speed, hewould see these were quality nominees and would support them,” says Michelle Behnke, a formerstate bar president who served on the commission. But Johnson was simply adhering to the



Washington Republican playbook, outlined by McConnell in his original letter about judges toObama two years earlier. Nourse says she repeatedly sought a meeting with Johnson so he couldreview her credentials, but he rebuffed her entreaties and refused to return her blue slip. In early2012, after 18 months of waiting, Nourse withdrew her nomination. Johnson, meanwhile, said hewanted Wisconsin to come up with a new system for recommending judges, but he and Kohlcouldn’t agree on what it would look like. The Obama administration declined to nominate anyoneuntil they could.

In 2012, Representative Tammy Baldwin, a Democrat, was elected to succeed Kohl in the Senate.One of her first acts was to meet with Johnson to start filling Wisconsin’s judicial vacancies.Johnson insisted on a new nominating commission with a different structure. No longer would thestate bar or the state’s law school deans participate, nor would a senator whose party was in theWhite House be able to appoint more members. Instead, the commission would consist of sixmembers, three appointed by each senator. Under the commission’s new rules, a judicialcandidate needed five votes to be recommended for a judgeship; the commission was required torecommend four to six candidates. Baldwin agreed to Johnson’s stipulations, and in April 2013,the commission was formed.

The commission began soliciting applications for the Court of Appeals for the Seventh Circuit seatin 2014, which by then had been vacant for more than four years. By the end of 2014, thecommission had reviewed numerous applications for the position and interviewed eightcandidates, but only two, a Madison lawyer named Don Schott and a Milwaukee Circuit Courtjudge named Rick Sankovitz, received the requisite five votes. Months later, when thecommission was still at an impasse, Baldwin sent the White House the names of the eightcandidates interviewed. Johnson and his commissioners cried foul. “In our view, there’s no sensein which they were finalists,” says Rick Esenberg, one of Johnson’s commissioners.

Rather than take advantage of the deadlock to nominate a “finalist” of whom the commission’sRepublican members disapproved, the Obama administration sought to defuse tensions andquickly settled on Schott, one of two candidates who had received five votes, as its likely nominee.In late July 2015, the White House initiated Schott’s F.B.I. background investigation and AmericanBar Association evaluation, which were concluded by early September. It stood to reason thatJohnson would support Schott’s nomination — after all, he had been recommended by thecommission Johnson established — but the White House wanted to make sure before it wentahead with it. Johnson dragged his feet. First, according to a former government official familiarwith the process, Johnson asked to see Schott’s F.B.I. file. “I don’t remember any other instance inwhich a Senate office made that request” before a nomination was made, the official says. Whenthe Obama administration wouldn’t give Johnson Schott’s F.B.I. file, Johnson insisted oninterviewing Schott himself. But then he didn’t schedule an interview. Finally, Schott flew toWashington in early November to meet with Johnson. In January 2016, six years after theSeventh Circuit seat became vacant, Johnson told the White House that Schott was acceptable,and Schott was quickly nominated.



Then came another round of delays. First, Johnson didn’t return his blue slip for Schott untilMarch. Next, Charles E. Grassley, the Iowa Republican and chairman of the Judiciary Committee,stalled on scheduling a confirmation hearing. Finally, in May, Schott was given a hearing. Baldwinappeared to introduce him and speak on his behalf to the committee. Johnson did not attend.Although he had returned his blue slip, he refused to offer Schott any support. “I haverecommended the committee consider it,” Johnson explained. “What I am not going to do ispublicly go out and make any other statements beyond that.” Nonetheless, in June, the JudiciaryCommittee voted 13 to 7 to advance Schott’s nomination. By now, however, there were only fivemonths until the presidential election, and with McConnell already refusing to give MerrickGarland a hearing for his Supreme Court nomination, it seemed unlikely that he would schedule afloor vote for Schott. The White House and Baldwin pressed him; Johnson did nothing. InNovember, when Trump was elected and Johnson was re-elected, Schott still hadn’t been given avote. His nomination was dead.

Even before Trump was sworn in as president, Don McGahn, Leonard Leo and other members ofTrump’s transition team began vetting potential judicial candidates to fill all the empty seats onthe bench. Together with McConnell, McGahn and transition officials devised a strategy to speedconfirmations through the Senate: Trump would prioritize appellate judges, rather than districtcourt ones, and initially fill vacancies from states with two Republican senators or from stateswith Democratic senators that had been won by Trump. Like George W. Bush, Trump wouldn’tallow the American Bar Association to vet potential judges before they were nominated. Butunder the new way of business, the Senate wouldn’t necessarily wait for the association tocomplete its vetting before the nominees were given hearings. The Judiciary Committee wouldalso more regularly take the unusual step of holding confirmation hearings for two appellatenominees at a time.

The most crucial procedural maneuver, however, involved the blue slip. When Grassley becamechairman of the Judiciary Committee in 2015 after Republicans took back the Senate, he publiclyindicated (in a column in The Des Moines Register) and privately said (in a conversation withLeahy, according to Leahy) that he would afford blue slips the same weight as his Democraticpredecessor. If both home-state senators didn’t return their blue slips, the nominee wouldn’treceive a hearing. Sure enough, in Obama’s final two years in the White House, Grassley deniedhearings to four appellate court and five district court nominees who didn’t receive blue slips. (AGrassley spokesman maintains that the nominees didn’t receive hearings “solely” because ofunreturned blue slips.) Although this benefited Republicans, it was viewed not as partisan but asprincipled; Grassley, in his sixth term and having just turned 80, was, like Leahy, an avowedinstitutionalist.

Then, last November, 10 months into Trump’s presidency, Grassley took to the Senate floor toannounce that he had a new, more nuanced view of the blue slip. While he would be “less likely”to grant a hearing to a district court nominee who didn’t have support of their home-state



senators, he would no longer allow a home-state senator to “wield veto power” over appellatenominees. “Circuit courts cover multiple states,” Grassley said. “There’s less reason to defer tothe views of a single state’s senator for such nominees.”

Grassley’s decision to disregard blue slips worries Leahy, who contends that it eviscerates theSenate’s “advise and consent” role. If a home-state senator can no longer put a hold on a nomineefor an appellate judgeship, what’s to stop a president from nominating a judge who isn’t evenfrom that state? “Depending on who’s in the majority and who’s president,” Leahy told me, “theymight decide, ʻWe’ve got to make this Texas court a little bit different, so we have this New Yorkerwho’d make a good judge down there,’ and nominate them and get them confirmed.” As towhether he regrets adhering to that principle, Leahy said: “The only regret I have is that theRepublicans haven’t stuck to the position they claimed was the right position when there was aDemocratic president. I’m old-school. I believe in senators sticking to their commitments.”

Grassley maintains that he still takes the Senate’s advise-and-consent role seriously. “My blue-slip policy is consistent with its traditional application as a way of promoting consultation withhome-state senators,” he told me in a statement. “I find it a bit ironic that the same senators whoopted to change the Senate’s filibuster rule in 2013 to silence the voices of 41 senators are nowcalling for the ability of a single senator to obstruct the Senate’s mere consideration of judicialnominees.” According to a Republican Judiciary Committee aide, Grassley has required thatMcGahn show him consultation logs — a ticktock of every communication the White HouseCounsel’s Office has with home-state senators about judicial nominations — to be assured thatthere’s meaningful home-state consultation. But as Senate Democrats note, “meaningfulconsultation” is in the eye of the beholder. “We’ve never relied on a chairman’s view of whether asenator was consulted before,” one Democratic aide says. “It was up to the senator about whetherthey were consulted.” Democrats charge that Grassley is not really concerned about the opinionsof home-state senators. “If it’s what Donald Trump wants, they’re going to go along with it,”Leahy says. “That seems to be the standard.”

While Grassley and the White House have sought the input of some Democratic senators onjudicial nominations from their states — notably those in the Democratic leadership, like ChuckSchumer, Richard Durbin and Dianne Feinstein, the ranking Democrat on the JudiciaryCommittee — they have, more often than not, steamrolled the rest of them.

When Senator Al Franken of Minnesota announced in September that he wouldn’t return his blueslip for David Stras, Trump’s first choice for a seat on the Court of Appeals for the Eighth Circuit,McGahn informed him that Stras would be nominated anyway. Then Grassley held a hearing forStras, clearing the way for his confirmation. (Stras was confirmed in January, after Frankenresigned; Franken’s successor, Tina Smith, voted against him.)

Similarly, Oregon’s Democratic senators, Jeff Merkley and Ron Wyden, both refused to returntheir blue slips for Ryan Bounds, Trump’s nominee for a judgeship on the Court of Appeals for theNinth Circuit. Bounds had concealed newspaper columns he wrote as a Stanford undergraduate



in the 1990s, in which he railed against “race-focused groups” on campus and likened theuniversity’s multicultural efforts to Nazi Germany. Nonetheless, Bounds received a JudiciaryCommittee hearing in June and was voted out of committee on an 11-to-10 party-line vote. Hisnomination was withdrawn minutes before a floor vote, when Senator Tim Scott of SouthCarolina, the only African-American Republican in the Senate, announced that he wouldn’t votefor Bounds on account of those columns.

During the transition, Trump’s advisers turned their attention to Wisconsin’s Court of Appeals forthe Seventh Circuit vacancy. Leonard Leo and several others recommended Mike Brennan for thespot. A Milwaukee lawyer and a founding member of that city’s Federalist Society chapter,Brennan had been the chairman of an advisory committee that helped Gov. Scott Walker selecthis own state-level judges, many of whom had won plaudits from conservatives. In March 2017,seven weeks into Trump’s presidency, the White House Counsel’s Office interviewed Brennan forthe appellate judgeship. This was somewhat awkward, because Johnson and Baldwin hadintended to use their beleaguered commission to help fill the vacancy. Johnson prevailed upon theWhite House to hold off on making a nomination until the commission could review candidates,and in April it began accepting applications.

Brennan applied. So, surprisingly, did Schott. According to those familiar with the commission’sdeliberations, which are confidential, Schott initially received the same five votes he did two yearsearlier, but when the Republican commissioners realized that Brennan had fallen short of therequired five votes — receiving just four — two commissioners changed their votes, and Schottfinished with just three. If in 2014 the commission was able to give Johnson and Baldwin only twonames, this time it came up with zero. In June, Schott was invited to Washington to interviewwith the White House Counsel’s Office. Five weeks later, Trump nominated Brennan for thevacancy.

Johnson hailed the move, but Baldwin cried foul, noting that the commission hadn’trecommended any candidates for the Seventh Circuit, nor did she believe that she had beensufficiently consulted by the White House Counsel’s Office about Brennan. She said she wouldn’treturn her blue slip. But under Grassley’s new blue-slip policy, that didn’t matter. In January, theJudiciary Committee held a confirmation hearing for Brennan. Two weeks later, the committeeapproved Brennan’s nomination 11 to 10 on a party-line vote. And in May, Brennan’s nominationcame before the full Senate, which approved it 49 to 46. After 3,044 days of sitting vacant, TerenceEvans’s Seventh Circuit seat was finally filled.

It remains difficult to parse Trump’s own legal views. In the wake of Antonin Scalia’s deathduring the Republican presidential primaries, he apparently became close with Scalia’s widow,and he now views the Supreme Court justice as a judicial role model. Perhaps in Scalia, Trumpsaw something of himself: a Queens kid who likes to mix it up. “Whether or not he gets every



nuance of textualism and originalism,” says one Republican lawyer who has been involved in theTrump administration’s judicial-selection process, “he gets that Scalia was courageous. Heprobably liked that Scalia was pugilistic in public.”

Leo, McGahn and others have done a remarkable job of persuading the president that theirintellectual judicial philosophy of originalism and textualism is in perfect sync with his visceralpreferences that judges be “courageous” and “not weak.” It’s easy to see how, in Trump’s mind,declaring war on “the administrative state” might dovetail neatly with his desire to go after the“deep state.” “A lot of the things that make Trump so loathsome as a person and a politician,”David Lat notes, “are why he’s been nominating judges who are such great conservatives.”

So far, Trump appears to be pleased with the decisions of the judges he has appointed. In June,after the Supreme Court decided 5 to 4, with Gorsuch in the majority, that the president does havethe authority to ban travelers from certain majority-Muslim countries, reversing two lower-courtrulings, Trump tweeted: “SUPREME COURT UPHOLDS TRUMP TRAVEL BAN. Wow!”

Yet despite Trump’s record on judicial appointments, some in the conservative legal movementremain uneasy. “He’s been great, and everything’s good,” one prominent conservative legalactivist says, “but what happens if the Senate goes 50-50? What happens if Don McGahn getsreplaced by Judge Napolitano?” Or what happens when an originalist judge does something thatgoes against Trump? When Neil Gorsuch was awaiting confirmation to the Supreme Court, hetold a Democratic senator that Trump’s attacks on the federal judge who temporarily blocked histravel ban were “demoralizing.” According to The Washington Post, Trump contemplatedwithdrawing his nomination because Gorsuch was not “loyal.” But after reading Gorsuch’s notethanking him for the nomination — “Your address to Congress was magnificent,” Gorsuch wrote— he decided to stay the course.

For the moment, Trump may believe that originalism and textualism cut in his favor, but there isno guarantee this will always be the case. While a president with an intellectual commitment tooriginalism and textualism would most likely be philosophical about a ruling from a like-mindedjudge that runs counter to his political or personal interests, this doesn’t describe Trump. Hewould almost certainly interpret such a ruling as evidence of a judge’s “cowardice” and“weakness.” Yet Trump can’t simply fire the offending judge the way he fires a secretary of state;these are lifetime appointments and thus, unlike so many others whom Trump has ushered intopower, judges are protected from his capriciousness. Earlier this year, McConnell, looking back onTrump’s achievements in 2017, noted that the tax bill was “hugely important,” but added that onceDemocrats took back control of the White House or Congress, they would revisit the tax code. Bycontrast, he said, “the thing that will last the longest is the courts” — whether Trump ultimatelywants them to or not.

Correction: Aug. 29, 2018



An earlier version of this article failed to attribute a characterization of the political leanings ofseveral United States Courts of Appeals. It is President Trump’s supporters in the conservativelegal movement who believe that the Sixth, Seventh and Eighth Circuit Courts were “liberal” priorto recent appointments.

Jason Zengerle is a contributing writer for the magazine and the political correspondent for GQ. He last wrote about Devin

Nunes, the chairman of the House Intelligence Committee.

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A version of this article appears in print on Aug. 25, 2018, on Page 30 of the Sunday Magazine with the headline: Bench Warfare

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